Arbitration Award – Clear Language Trumps Longstanding Practice
In this Brockton Arbitration Award the arbitrator enforced contractual language notwithstanding a twelve year contrary past practice.
The grievance challenged the City’s twelve-year practice of compensating Animal Control Officers for overtime based upon a forty (40) hour work week rather than a thirty-five (35) hour work week. The City challenged the grievance both on arbitrability timeliness grounds and on the merits.
The arbitrator found that the grievance was arbitrable, notwithstanding the City’s timeliness defense, holding that the union had no knowledge that Animal Control Officers were being paid on a forty (40) hour workweek until just prior to filing the grievance. In addition, the arbitrator found the grievance to be a continuing violation.
The arbitrator also enforced the thirty-five (35) hour work week language of the contract, notwithstanding the fact that the City had a twelve-year practice of paying Animal Control Officers based upon a forty (40) hour work week.
Accordingly, the arbitrator held that the City violated the contract by calculating Animal Control Officer overtime based upon a forty (40) hour work week rather than a thirty-five (35) hour work week. As a remedy, the arbitrator ordered the City to make the Animal Control Officers whole for all losses retroactive to ten (10) days prior to filing the grievance. In addition, she ordered the City to prospectively compensate Animal Control Officers and the Animal Control Supervisor an hourly/overtime rate based upon a thirty-five (35) hour workweek.
Download: Arbitration Award and Opinion
One thought on “Arbitration Award – Clear Language Trumps Longstanding Practice”
You must have done a spectacular job of advocacy because I would have held against you if I were the arbitrator. Based on all the modifications of the schedule for animal control officers, I would have found that the long practice manifested an agreement to modify the hours in the workweek. I think most arbitrators would lean toward preserving the status quo in this case.